Daily Archives: October 22, 2013

“No man, but one of his (Andrew Jackson’s) peculiar intellect, would ever think of an amendment of the Constitution as a means of resisting a breach of that instrument. It is not the object to amend the Constitution, but to preserve it unimpaired as it is.” – Abel P. Upshur

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In The New York Times, Linda Greenhouse has an anti-originalist column A Tree Grows in Canada — with some interesting Canadian history. As she explains, the British North America Act (effectively Canada’s original constitution) provided for “qualified persons” to be appointed to the Senate. When a woman, Judge Emily Murphy, sought appointment, she was rejected because (it was said) women did not qualify as “persons.” As Greenhouse continues the story:

Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”

The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”

Based on this, Greenhouse doesn’t understand originalism, and neither did Chief Justice Anglin (about whom I otherwise know nothing). The decision is silly, and no modern originalist would follow it, nor would it warm anyone’s heart on the current Court. It’s possible (even likely) that the drafters of the Act only had only men in mind as Senators. But they did not write “men,” as they easily could have. (Voting laws of the time typically referred to “male” citizens, for example). They wrote “persons.” In 1867, I cannot imagine that in any ordinary legal language, in Britain or Canada, “persons” meant “only male persons.” A word in a statute should be given its ordinary public meaning, regardless of subjective intentions harbored by its drafters.

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If ever there was a lesson in why granting power to busy-bodies and petty-tyrants is a bad idea, it is the decades-long federal ban on hemp production. Allowing a small cadre of bureaucrats to rule over whole sections of the earth and its occupants has stunted economic growth by limiting production and employment opportunities. It has largely destroyed the intellectual capital that existed in the United States for hundreds of years and finally there is hope this will end.

Since the 1950s hemp has been considered a controlled substance – despite having negligible levels of THC – and thus farmers have been prohibited from growing hemp for industrial purposes. This hasn’t meant that it cannot be imported, as recent estimates put the annual sales of hemp-based products at roughly half a billion dollars in the United States. You see, hemp is too dangerous to be grown Montana, but it’s perfectly safe when produced in say, Alberta, Canada.

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Aesop was a Greek slave and storyteller who left us quite a legacy – some 160 fables. One of those simple stories has a very important message for those of us standing against overreaching Washington D.C. powerbrokers.